People v. Gutierrez

Opinion

Defendant, Manuel Vincent Gutierrez, was convicted by a jury of wilful and unlawful infliction of corporal injury upon his wife resulting in a traumatic condition (Pen. Code, § 273.5).^[2] He waived his right to jury trial as to alleged prior convictions, challenging their constitutionality. After trial by the court, the priors were found to be true and constitutionally valid. He was sentenced to state prison for the upper term of four years, and his sentence was enhanced one year each as to the first and second alleged priors. We affirm the judgment.

Facts

Defendant and his wife had been married for over 10 years. They had two children. About three weeks prior to the incident, defendant moved out of their apartment. He returned early one morning at approximately 3 a.m., and sought entry. The wife eventually gathered up the children and attempted to flee. Defendant stopped them before they reached the car, and they went back into the house. A scuffle ensued. Defendant pushed his wife. The wife hit defendant with a frying pan. He knocked her down and banged her

Contentions

On appeal defendant contends: (1) Section 273.5 denies equal protection of the law by creating a special class of individuals upon whom it operates; (2) That cohabitation was a necessary element of the offense; (3) CALJIC No. 9.35 incorrectly defines the meaning of “traumatic condition”; and (4) His sentence was improperly enhanced with an invalid prior felony conviction stemming from a 1969 plea.

Discussion

Constitutionality of Section 273.5

At the close of the prosecution’s case-in-chief, defendant moved for dismissal pursuant to section 1118.1, contending, as he does on appeal, that section 273.5 denies him equal protection of the law. He asserts that section 273.5 favors divorced spouses and separated partners of meretricious relationships by excluding them from its operation. Persons in those categories who commit violence against each other cannot be found guilty of violating this section. Only married or married but separated couples or partners in meretricious relationships who are presently cohabiting can fall within the proscription of section 273.5.

The constitutional pedigree of section 273.5 has already been established.

First enacted in 1945 as section 273d, the statute prohibited a husband from inflicting upon his wife corporal injury resulting in a traumatic condition and prohibited any person from doing the same to any child.^[3]

In 1977 the Legislature separated the subject matters of child abuse and wife beating found in the original section 273d. The child abuse prohibition

An equal protection challenge had been made to section 273d prior to the revision. In People v. Cameron (1975) 53 Cal.App.3d 786 [ 126 Cal.Rptr. 44 ], the court upheld the predecessor statute, but suggested that the Legislature consider broadening the statute by making it applicable to both spouses. (Id,, at p. 797.)

Perhaps in response to this, and to the growing recognition of the fact that “[d]uring the past 15 years, there has been a substantial increase in the number of couples living together without marrying . . . .” (Marvin v. Marvin (1976) 18 Cal.3d 660 , 665 [ 134 Cal.Rptr. 815 , 557 P.2d 106 ]), the Legislature amended the statute to its present form prohibiting violence against spouses, and sweeping into its protection cohabiting members of the opposite sex.

This classification by intimacy of relationship is a valid exercise of the Legislature’s judgment. As the court observed in People v. Cameron, supra, 53 Cal.App.3d at p. 792: “It is indisputable that the overwhelming number of encounters between husbands and wives take place in the home, usually late at night and after the consumption of alcohol by one or both of the parties. . . . Society places strong restraints upon unchivalrous conduct by a male toward the female in a social setting. But such chivalry appears to lose its efficacy at the threshold . . . quite predictable is the outcome, that the husband’s fists are more damaging than the wife’s tongue, however sharp.”

The occasion of a separation among spouses ofttimes heightens the potential for angry confrontation, as apparently occurred in this case. The need for special protection is well documented in the literature, both for spouses^[4] and for children.^[5] Divorced spouses and separated partners of meretricious relationships are simply not in the constant proximity to each other as are married spouses and cohabiting couples.

Whether married or not, cohabiting partners are in the high risk category for domestic violence. The police officer responding to the scene of a domestic disturbance may be unable to effect an arrest and restore order were it not for this section. To make an arrest without a warrant the crime must either be committed in the presence of the officer if a misdemeanor, or the officer must have reasonable cause for believing a felony has been committed. (§ 836.) Domestic violence “is usually accomplished with fists and kicking .... The severity of the injuries are therefore not always capable of instant diagnosis. Internal injuries and even broken limbs may not immediately evidence themselves.” (People v. Cameron, supra, 53 Cal.App.3d at p. 793.) Rarely, if ever, will the violence occur in the officer’s presence, and he cannot arrest for a felony battery unless the victim suffered serious bodily injury.^[6] “But an officer given the alternative of arresting for a felony under the provisions of section 273d [now 273.5] may do so when he observes traumatic injury.” (Ibid.)

The rationale set forth in Cameron for upholding the constitutionality of the predecessor statute, applies equally to the statute in its present form. Cameron was recently cited with approval by our Supreme Court when dealing with the child abuse statute. (People v. Smith (1984) 35 Cal.3d 798 , 810 [ 201 Cal.Rptr. 311 , 678 P.2d 886 ].)

Cohabitation

Defendant also contends that cohabitation is a necessary element of the offense, otherwise the statute discriminates against married but separated couples.

The fact the Legislature made these constitutionally valid classifications does not elevate any particular aspect of either category, such as cohabitation, into a necessary element of the offense in all cases. Cohabitation defines one of the protected classes, that is, unmarried cohabitors; it is not a constituent part of the prohibited activity. Accordingly, defendant was not entitled to an instruction that required the jury to find cohabitation existed as a condition of rendering a verdict against him.

Appellant asserts he was entitled to such an instruction on his theory of the case, no matter how weak, citing People v. Carmen (1951) 36 Cal.2d 768 , 773 [ 228 P.2d 281 ]. That case requires the trial court to instruct the jury . . upon every material question upon which there is any evidence deserving of any consideration whatever. . . .’” (Ibid., quoting People v. Burns (1948) 88 Cal.App.2d 867 , 871 [ 200 P.2d 134 ].) However, a criminal defendant is not entitled to instructions on theories for which no evidence has been adduced, nor on legal theories which are erroneous. (People v. Terry (1970) 2 Cal.3d 362 , 401 [ 85 Cal.Rptr. 409 , 466 P.2d 961 ].) Here, appellant’s theory that cohabitation is a necessary element of the offense for married persons is not the law, and the court properly refused to instruct on that theory.

Caljic No. 9.35

The trial court instructed the jury by giving CALJIC No. 9.35 (1980 rev.).^[7] Defendant assails the definition of “traumatic condition” found